By Ted Sherman
nj.com
NEWARK, N.J. — Newark has moved to dismiss a $50 million wrongful death lawsuit brought by the families of two firefighters who perished last July aboard a burning cargo ship, arguing that accidents arising out the course of employment do not belong in the federal courts, but instead are a workers’ compensation matter.
In a filing on Monday, attorneys for the city also claimed that the lawsuit was improperly brought against the Newark Fire Department, which they said is an administrative arm of the city and cannot be sued as a separate entity.
Newark said it grieved the loss of Augusto “Augie” Acabou, 45, and Wayne “Bear” Brooks Jr ., 49.
“Newark extends its deepest condolences to their families,” the city’s attorneys wrote. But it added that the sole legal remedy available for the families was through New Jersey’s workers’ compensation program, adding that there are “no plausible facts” to support a claim of “intentional wrong” that serves as an exception.
“Workers’ compensation is the sole source of compensation for the families of the deceased Newark firefighters, even in this maritime matter,” the city said.
The state program provides death benefits to dependents of workers who have died as a result of their employment, but those claims are limited to a percentage of the weekly wage of a deceased worker, according to the state.
“There are no facts that the city was aware of any risk whatsoever to these firefighters. Nor are there any plausible facts that suggest anything but these unfortunate deaths were merely a ‘fact of life of industrial employment,’” the city wrote. “Here, the deceased firefighters were trained and certified professional firefighters. Their job was to enter burning structures to search for persons in need of rescue and to extinguish fires. By its very nature, firefighters necessarily have to move about in confined spaces in low visibility.”
In its filing, the city said firefighting was by nature an occupation requiring exercise of judgment in rapidly unfolding, dangerous conditions.
“To allege that what occurred here was not the sort of industrial danger firefighters face every time they go out on a call is to misunderstand the nature of firefighting,” wrote Newark’s attorneys.
In testimony before the U.S. Coast Guard, however, city fire officials acknowledged they had no training in battling shipboard fires.
In the lawsuit by the families of Acabou and Brooks, filed earlier this month, they charged that negligence, carelessness and recklessness on the part of the city, the shipping company and those involved in loading the ship led to the untimely deaths of the men. They claimed that Newark failed to train and equip the veteran firefighters to deal with the dangerous conditions they faced aboard the Grande Costa d’Avorio when fire swept through the car-carrying vessel on July 5, 2023. It also alleged its owners, Grimaldi Deep Sea of Naples, Italy, operated the ship in an “unreasonably dangerous and unseaworthy condition.”
Also named in the lawsuit was the terminal operator where the ship was berthed and the company that loaded thousands of used vehicles on board, along with the Port Authority of New York and New Jersey, which operates Port Newark.
In a separate filing, the Port Authority last week said it was not liable for any damages related to the fatal fire.
“The fire and any claims or damages arising out of the incident were proximately caused, in whole or in part, by the negligence of Grimaldi, Grimaldi’s agents, servants, contractors, and/or subcontractors for whom Grimaldi is legally responsible,” the bi-state agency stated.
Acabou and Brooks became trapped on Deck 10 of the freighter filled with 1,200 highly combustible junk cars and trucks bound for West Africa when they were ordered below to assess the situation.
The fire started when a 16-year-old Jeep Wrangler, modified with a steel push bar on the front, erupted in flames as it was being used to shove an inoperable Toyota Venza on board. The longshoreman behind the wheel of the Jeep said he heard a loud clunk, describing the sound like a wrench being dropped to the floor. Then he saw what looked like “flaming fireballs dripping from the bottom of the vehicle.”
The cause of the fire and who may be to blame for what happened is still being investigated by the Coast Guard and the NTSB — the National Transportation Safety Board — as well as state, local and other federal agencies.
But a months-long inquiry by NJ Advance Media found that the state’s largest city was unprepared to fight a major fire at one of the nation’s largest ports. That report was based on interviews with firefighters and marine fire experts, public records and court filings, hours of radio traffic, and internal incident reports that found that Newark firefighters and command officers responsible for helping safeguard one of the country’s busiest ports had minimal to no training for dealing with maritime fires.
In testimony before the Coast Guard, Newark Battalion Chief Al Maresca, who had been among the first on the scene when fire broke out, said he had never fought a shipboard fire in his 36 years with the department and never had any shipboard firefighting training.
The families said the fire department was negligent in ordering firefighters to board a vessel and suppress a fire for which they were not sufficiently trained nor equipped to suppress, and failed to provide the appropriate manpower to fight it.
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